CALIFORNIA STATE LIFE INSURANCE COMPANY, a Corporation, Appellant,
MARY G. FUQUA and R. H. FUQUA, Her Husband, Appellees
APPEAL from a judgment of the Superior Court of the County of Maricopa. A. S. Gibbons, Judge. Judgment affirmed.
Messrs. Armstrong, Kramer, Morrison & Roche (Mr. C. E. McLaughlin and Mr. Porter McLaughlin, of Counsel), Appellant.
Mr. L. M. Laney and Mr. George T. Wilson, for Appellees.
[40 Ariz. 150] LOCKWOOD, J.
Mary G. Fugua and R. H. Fugua, her husband, hereinafter called plaintiffs, brought suit against California State Life Insurance Company, a corporation, hereinafter called defendant, to recover the sum of $5,000 alleged by plaintiffs to be due from defendant on an insurance policy written by it upon the life of one Francis Fuqua. The case was tried to a jury, which returned a verdict in favor of plaintiffs for the full amount prayed for, and defendant has brought the matter before us for review.
Up to a certain point the parties are agreed as to the facts necessary for a determination of the case, and we state these agreed facts as follows: The policy in question was for the sum of $2,500, but it contained a rider to the effect that, if the insured should die as a result of bodily injury effected solely through "external, violent and accidental means," defendant would pay double the face of the policy. It was further provided, however, that the double indemnity should not apply if death resulted "from any violation of law."
[40 Ariz. 151] Some time after midnight on January 23, 1930, the deceased Francis Fuqua appeared at No. 1923 West Adams Street, premises occupied by one Jack McClain, who was then engaged in bootlegging.Fuqua became quite boisterous while there, brandishing a revolver and telling McClain that he was a "tough guy." He engaged in an altercation with a friend of McClain's, one Worley, placed the revolver against the latter's body, and pulled the trigger; but fortunately the shell missed fire and failed to explode. McClain and Worley then decided that the situation was becoming entirely too strenuous to suit them, and left the house in a half-dressed condition, proceeding to a cafe on the corner Seventeenth Avenue and Washington Street, where they met two city policemen named Rader and Smith. They related these things to the officers, and the latter got in a Ford touring car used by them for patrol purposes and drove out to the 1900 block on West Adams Street to investigate the matter.
So far there is practically no dispute as to the occurrences leading up to Fuqua's death, but from here on there is a sharp conflict in the deductions drawn from the evidence by plaintiffs and defendant. Rader and Smith testified that they passed the McClain premises going eastward to a point three or four houses beyond, when they saw a man, who later proved to be Fuqua, step into the street holding a pistol in his right hand. The man signaled to them to stop, and they drove up until within a few feet of him. At approximately the time the car stopped they ordered Fuqua to "stick them up." Immediately upon these words being spoken, Fuqua, who was still holding the pistol in his right hand, opened fire on them at such a short range as to scorch Smith's nose and singe Rader's hair. They returned his fire immediately and he ran to the rear of the car and again fired, the bullet going into the car and [40 Ariz. 152] lodging in the rear cushion. The officers continued firing at Fuqua, who dropped his gun and ran a few feet to a driveway on the opposite side of the street where he fell dead. They further testified that a street light near there gave so bright an illumination that when they ordered Fuqua to "stick them up" he must have seen that they were in uniform with their badges on, and known that they were officers. They admitted, however, that they did not specifically notify him that they were police, or that they were arresting him. Fuqua being dead, they are the only living eye-witnesses of what actually happened at the immediate time of the killing, but other officers who were summoned later corroborated their testimony to the extent of stating that they saw a hole in the rear of the police car made by a bullet from the outside, and found the rear cushion on fire from the bullet.
The evidence on behalf of plaintiffs as to what happened at the time of the shooting was necessarily circumstantial. Three witnesses testified that Fuqua had always been left-handed. Two witnesses testified that the pistol which Fuqua had with him that night had been given him a few hours before the killing, and that there were only three cartridges accompanying it. One witness said that Fuqua had fired two of these before the arrival of the officers on the scene, and snapped the third without exploding it, and had then asked for a taxicab. The uncontradicted evidence is that when Fuqua's gun was taken possession of by the officers who arrived shortly after the shooting, there were two exploded cartridges and one which was
unexploded, but showed the mark of the firing pin.
It is the theory of the defendant that Fuqua was killed in an attempt to resist forcibly an arrest by officers who had reasonable cause to believe that he had just committed a felony by attempting to shoot [40 Ariz. 153] Worley, and that the double indemnity does not apply because his death was the natural and proximate result of his violation of law in thus resisting arrest. It is the theory of plaintiffs that, whatever Fuqua's conduct was before the officers arrived, at that time he was peaceably signaling what he believed to be a taxicab which he had asked McClain to get for him, and that the officers, without any justification or excuse, immediately opened fire upon and killed him, and that he did not fire a shot at this time, or attempt in any manner to resist arrest.
There are some six assignments of error which we will consider in the order which seems advisable. The fourth is that the evidence shows conclusively the deceased came to his death as the direct and proximate result of a violation of law. If the testimony of the officers Rader and Smith is true in toto, there is no doubt that the court should have instructed the jury to return a verdict in favor of defendant, because, if they are to be believed, he did come to his death as a result of a violation of law. If, however, the theory of the plaintiffs is correct, the killing was either wanton on the part of the officers or else an unfortunate mistake. It is the invariable rule of this court, never departed from since its organization, that, where the evidence is of such a nature that reasonable men could form different opinions as to the inferences of ultimate facts to be drawn, we will not disturb the findings of the trial court or the verdict of the jury on the ground that in our opinion they did not reach the proper conclusion as to those facts. The officers testified positively and repeatedly that Fuqua held the pistol in his right hand when he stopped them, and that he fired while it was still in that hand. Three witnesses on the other hand testified that he had always been left-handed. Rader and Smith testified to two shots being fired by Fuqua; one before they opened fire, and one during the course [40 Ariz. 154] of the melee. The plaintiffs offered evidence from which, if true, the inference could reasonably be drawn that Fuqua never had more than three cartridges in his possession during the evening, and that two of these had been fired and the thrird snapped before the officers arrived at the scene of action. There was also a question as to whether Fuqua knew that ...